Citation Nr: 9816334
Decision Date: 05/27/98 Archive Date: 06/03/98
DOCKET NO. 94-39 455 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical Center in Des Moines,
Iowa
THE ISSUE
Entitlement to payment or reimbursement of unauthorized
medical expenses incurred in connection with private
treatment and hospitalization at Iowa Lutheran Hospital
between January 10 – 15, 1993.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARINGS ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
Siobhan Brogdon, Counsel
INTRODUCTION
The veteran served on active duty from August 1952 until
November 1955.
This appeal comes before the Department of Veterans Affairs
(VA) Board of Veterans’ Appeals (Board) from a decision of
the Department of Veterans Affairs (VA) Medical Center (MC)
in Des Moines, Iowa which denied the claim for payment of
unauthorized medical services between January 10 – 15, 1993.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that payment or reimbursement of
unauthorized medical expenses incurred in connection with
private medical treatment in January 1993 at Iowa Lutheran
Hospital is warranted because there was an emergency medical
situation and it was not feasible to go the nearest VA
medical facility because of bad weather, including blizzard
conditions. She also maintains that she had also been
previously told by VA officials that they did not have the
facilities to treat female veterans.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the preponderance of the
evidence is against the claim for payment or reimbursement of
unauthorized medical expenses incurred in connection with
private medical treatment and hospitalization at Iowa
Lutheran Hospital between January 10 – 15, 1993.
FINDINGS OF FACT
1. The veteran received private medical treatment for a
service-connected kidney disorder in January 1993 at Iowa
Lutheran Hospital without prior authorization from VA.
2. A VA medical facility was feasibly available to the
veteran during the pertinent period at the time of the
medical emergency.
3. The appellant did not attempt to use the VA medical
facility beforehand, or try to obtain prior VA authorization
for the services required.
CONCLUSION OF LAW
Reimbursement or payment of the cost of unauthorized private
medical services at Iowa Lutheran Hospital between January 10
– 15, 1993 is not warranted. 38 U.S.C.A. § 1728 (West 1991);
38 C.F.R. §§ 17.120, 17.130 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claim has been determined to be well-grounded
within the meaning of 38 U.S.C.A. 5107(a). That is, she is
found to have presented a claim in this regard which is
plausible. The Board is also satisfied that that all
relevant facts have been properly developed. No further
assistance to the veteran is required to comply with the duty
to assist mandated by 38 U.S.C.A. § 5107(a).
In a claim for entitlement to payment or reimbursement of
unauthorized medical expenses, the claimant must present
evidence tending to show that he or she satisfies each of
three requirements. See Hayes v. Brown, 6 Vet. App. 66, 68
(1993); Parker v. Brown, 7 Vet. App. 116 (1994).
Specifically, the claimant must show that:
(a) The care and services rendered were
either:
(1) for an adjudicated service-
connected disability, or
(2) for a non-service-connected
disability associated with and held
to be aggravating an adjudicated
service-connected disability, or
(3) for any disability of a
veteran who has a total disability,
permanent in nature, resulting from
a service-connected disability, or
(4) for any injury, illness, or
dental condition in the case of a
veteran who is participating in a
rehabilitation program and who is
medically determined to be in need
of hospital care or medical services
for reasons set forth in 38 C.F.R. §
17.47(j) (formerly § 17.48(j)); and
(b) The services were rendered in a
medical emergency of such nature that
delay would have been hazardous to life
or health; and
(c) No VA or other Federal facilities
were feasibly available and an attempt to
use them beforehand or obtain prior VA
authorization for the services required
would not have been reasonable, sound,
wise, or practicable, or treatment had
been or would have been refused.
38 U.S.C.A. § 1728 (West 1991); 38 C.F.R. §17.120 (1997).
No reimbursement or payment of services not previously
authorized will be made when such treatment was procured
through private sources in preference to available Government
facilities. 38 C.F.R. § 17.130.
In the instant case, the record reflects that the veteran is
service connected for recurrent renal lithiasis with chronic
ureteral infection, currently rated 30 percent disabling. It
is shown that an ambulance was called on January 10, 1993 and
that she sought treatment in the emergency room of Iowa
Lutheran Hospital in Des Moines, Iowa, for symptoms which
included severe right flank pain, and a history of kidney
stones. The veteran was subsequently admitted and diagnostic
studies were performed showing multiple right renal stones.
She was treated over the course of a number of days and
underwent cystoscopy, urethroscopy, laser lithotripsy, stone
manipulation with extraction of stone, and placement of
ureteral catheter. She was discharged on January 15, 1993 in
improved condition.
The veteran’s treating physician, P. H. Kohler, M.D.,
F.A.C.S., wrote in February 1994 the veteran’s
hospitalization was absolutely necessary in her situation,
and that it was necessary for her to have therapy at the Iowa
Kidney Stone Center since it had more equipment available for
stone disease.
The Board points out that there is a VA Medical Center in Des
Moines, Iowa. During personal hearing on appeal in October
1994, a VA physician from the facility stated that the
hospital was staffed 24 hours a day and that there were at
least four resident doctors at all times. It was related
that the VA had urologists on staff who could be called in,
and VA utilized the services of other lithotripters in the
area for treatment of kidney stones.
Upon personal hearing on appeal in October 1994, the
appellant and her spouse essentially testified that the
reason she did not go to the VA for treatment was because
there had been a severe snow storm such that roads were
impassible. She indicated that her condition was “grave,”
her vital signs were unstable, and that she did not want to
take the chance of taking the longer route to the VA. She
related that her decision to go to Iowa Lutheran was the
right one under the circumstances because she had been
followed by a private physician, Dr. Kohler, for a number of
years who had taken very good care of her with respect to her
kidney stones and who was associated with that hospital. It
was also noted that at an earlier date, the veteran has been
informed by the VA Medical Center in Des Moines that there
was nothing that could be done at that facility to alleviate
or treat her condition and that if she could find her own
doctor in this regard, that she should do it.
The veteran testified upon personal hearing on appeal in
March 1996 before a Member of the Board sitting at Des
Moines, Iowa and essentially elaborated upon previously
provided testimony. It was added that the rescue unit had
difficulty getting to the veteran’s house because of the
blizzard conditions and that the paramedics felt that Iowa
Lutheran was the only sure hospital they could reach. It was
reported that the veteran’ s husband was beside himself and
called the treating physician who was at the hospital when
they arrived. She stated that she had passed some other
kidney stones on her own without treatment, but that on the
morning of January 10, 1993, she awoke with progressively
worsening pain. She indicated that she called Dr. Kohler who
advised her to wait until she felt she really needed to go to
the hospital, and that the reason to seek treatment from him
was that he was available immediately. The veteran’s
representative related that the emergent conditions of
January 10th did not allow for the veteran to be transported
to the VA facility. He also noted that in the 1960’s 70’s
and 80’s the VA hospital had not been equipped to handle
women patients and that the female veteran was still not
treated on an equal basis as the men.
Pursuant to Board remand of March 1997, a number of maps of
the Des Moines, Iowa area, to include the veteran street
residence, the ambulance report, copies of the Des Moines
Register of January 10th through 15th 1993, as well as climate
and weather reports and road condition statistic from local
reporting authorities were received into evidence.
After a careful and comprehensive review of the evidence, the
Board finds while the veteran was treated for a service
connected disorder under emergent conditions it is clearly
demonstrated that a VA facility was feasibly available for
the appellant to go to, and that no attempt had been made
beforehand to use it or obtain prior VA authorization for the
services required. There is also no evidence in the record
that a decision to use a VA facility would not have been
reasonable, sound, wise, or practicable, or that treatment
would have been refused at that time. 38 U.S.C.A. § 1728; 38
C.F.R. § 17.120.
The official evidence of record reveals that the VA Medical
Center and Iowa Lutheran Hospital are in relatively close
proximity to the other. The street maps show that while
there might have been a more direct route to the private
hospital coming from the veteran’s home, there is no showing
that an undue delay would have resulted in taking her to the
VA. The ambulance report reveals that following a call at
8:55 A.M., the emergency medical technicians (EMTs) were at
her residence at 9:05 A.M., they then left the residence at
9:12 A.M. and arrived at Iowa Lutheran at 9:22 A.M. There is
no indication in the rescue unit’s report that they
experienced any difficulty arriving at the veteran’s house or
in transit to the hospital. As well, weather and climate
reports from the National Oceanographic and Atmospheric
Administration and the Iowa State Climatologist, and road
condition reports from the Iowa Department of Public Safety
demonstrate that snow had stopped falling hours before the
appellant’s husband called the EMTs on January 10th. While
it was reported that between 2 ˝ and 3 ˝ inches of snow was
on the ground at that time, the main highways were noted to
be from normal to approximately 25 percent snow covered. The
official weather statistics are thus shown to differ
dramatically from the appellant’s statements and testimony in
the record that “blizzard-like” conditions existed at that
time and that up to 13 inches of snow was on the highways as
she was being transported to the hospital. It is therefore
found that a VA medical facility was feasibly available for
treatment of her kidney stones.
The record clearly indicates that the appellant simply
desired to be seen by her treating physician when her kidney
symptoms flared up on January 10, 1993, and that such
treatment was procured through private sources in preference
to available government facilities. She stated on personal
hearing on appeal that she had been going to her physician
for a number of years. She related that had undergone other
kidney stone crises, all of which had not required
hospitalization, and that when she called Dr. Kohler (or when
someone called for her), she was told to wait until she felt
she had to go to the hospital. This indicates that there was
time to call the VA facility to make arrangements beforehand
or to obtain prior VA authorization for the services
required. While she now states that she had been told that
the VA could not treat her condition, she also testified that
she had not gone to the VA Medical Center in 20 years, and
thus could not have known whether the condition was treatable
by them or not as the facility was not contacted. The claim
for reimbursement or payment of the cost of unauthorized
private medical services at Iowa Lutheran Hospital between
January 10 – 15, 1993 is therefore denied on the basis that a
VA facility was feasibly available, because no attempt was
made to use VA facilities beforehand or obtain prior VA
authorization for the care required.
The Board has considered the doctrine of benefit of the
doubt, but finds that the record does not provide an
approximate balance of negative and positive evidence on the
merits. Therefore, a reasonable basis for a grant of the
benefit sought on appeal is not identified at this time.
ORDER
The claim for entitlement to reimbursement or payment of the
cost of unauthorized private medical services between January
10 – 15, 1993 at Iowa Lutheran Hospital is denied.
DEREK R. BROWN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
Indeed, the record shows that at 9:35 AM on January 10, 1993, a 100 year old wheelchair bound veteran
was admitted to the VA facility despite needing to travel 122 miles on I-35 South.
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